2020 Y L R 315
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
ATTAULLAH ---Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No.96 of 2019, decided on 7th August, 2019.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 497 & 103--- Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25---
Possession of narcotics ---Search and arrest ---Mode ---Search to be made in presence of
witnesses---Bail, refusal of ---Prompt FIR ---Non -bailable offence---Scope ---Accused w as
alleged to have been in possession of five kilograms of narcotics which was recovered by the
complainant during checking of bus ---Accused had been nominated in the promptly lodged
FIR and the alleged recovery of narcotics was effected from his personal possession ---
Application under S. 103, Cr.P.C. had been excluded by S. 25, Control of Narcotic Substances Act, 1997--- Members of law enforcing agencies were competent witnesses in the
eyes of law unless there existed any mala fide or malice with accused person ---Accused had
failed to point out any ill- will or enmity on the part of prosecution--- Presence of accused at
the bus stand was also not disputed---Offence under S. 9(c), Control of Narcotic Substances Act, 1997 was punishable with imprisonment for dea th or life, which came within the ambit
of prohibition contained in S. 497(1), Cr.P.C.--- Question of bail could not be considered at
initial stage of the trial--- Prima facie, sufficient material was available on record to connect
the accused in the commiss ion of non- bailable offence--- Petition for bail, being devoid of
merit, was dismissed.
2005 PCr.LJ 303 and Afzaal Ahmed v. The State 2003 SCMR 573 ref.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Bail ---Scope ---Question of bail cannot be cons idered at the initial stage of the
trial.
Afzaal Ahmed v. The State 2003 SCMR 573 ref.
Jameel Agha and Imran Kakar for Applicant.
Abdullah Langove, Assistant Attorney General -II for the State.
Date of hearing: 5th August, 2019.
ORDER
ABDUL HAMEED B ALOCH, J. ---Through this application, the applicant seeks bail
in FIR No. 17 of 2019 registered with Coast Ghard Uthal, under Section 9(c) of the Control
of Narcotic Substances Act, 1997 ("the CNS Act, 1997").
Earlier the application filed for the same re lief before the learned Special Judge CNS,
Lasbela at Hub was rejected vide order dated 27.06.2019. Hence this application.
2. Brief facts of the case are that on 26.06.2019, on the report of complainant Sobedar
Arif Mehmood an FIR No.17 of 2019 was lodged with Coast Guard Uthal, alleging therein
that on the stated date, place at about 4:50 Al -Asmat Coach was intercepted and same was
checked. A person seating at Seat No.19 disclosed his name as Attaullah was searched, resultantly five kilogram narcotics wer e recovered from his possession, which were taken
into possession through vide recovery memos.
3. Learned counsel for the applicant stated that the prosecution has failed to collect
incriminating material; that despite laps of more than six month none of the witness has been recorded; that the challan of the case has been submitted before the trial cou rt and the
applicant is no more required for further investigation; that the applicant was arrested when passenger coach was searched but none from the public has been cited as witness. He therefore prayed for grant of bail. He relied upon a judgment repor ted in 2005 PCr.LJ 303.
4. Learned Assistant Attorney General -II vehemently opposed the contention of learned
counsel for the applicant and contended that the applicant/accused is involved in a heinous crime and the defence has failed to point out any ill will or grudge on the part of the
prosecution, therefore urged for dismissal of the application.
5. We have heard learned counsel for the applicant, learned APG and have also gone
through the record. The perusal of record reveals that the accused/ applica nt has been
nominated in the promptly lodged FIR and the alleged recovery of narcotics was effected from his personal possession. Now adverting to the ground of learned counsel for the applicant that no private person was associated during recovery proceed ings, the same has no
force in it, because the application of Section 103 Cr.P.C. in narcotics cases has been excluded by Section 25 of CNS Act, 1997. Even otherwise the member of law enforcement agency is competent witness in the eye of law can be credibl e with veracity unless there exist
any mala fide or malice with accused person. The learned counsel for the applicant has failed to point out any ill will or enmity on the part of the prosecution with the accused/applicant. The presence of the applicant at the bus stand is also not disputed. The offence under section
9(c) of the CNS Act, is punishable with imprisonment for life or death, which comes within the ambit of prohibition contained in section 497(1), Cr.P.C. The case is at initial stage and prosecu tion is leading its evidence, therefore, at this initial stage of the trial the question of
bail cannot be considered. In this regard reliance is placed on the case of Afzaal Ahmed v. The State 2003 SCMR 573.
6. Now adverting to the judgment as relied upon by the learned counsel for the
applicant, the same is altogether different from the instant case, where only 500 grams
narcotics were recovered but in the instant case five kilograms charas have been recovered.
In view of above observations, as tentative assessment of the evidence reveals that
prima -facie sufficient material is available on record to connect the applicant in the
commission of non- bailable offence, therefore, we are not inclined to accept this application.
Consequently, the application be ing devoid of merit is dismissed.
Needless to observe that the observations made in this order are tentative in nature
and same shall not affect the merits of the case at the trial.
SA/80/Bal. Bail refused.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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